File photo of Former prime minister Nawaz Sharif. PHOTO: REUTERS
In a decision that has dealt a major blow to the government, a division bench headed by Justice Ali Baqar Najafi also held that the duration of 69-year-old Sharif family patriarch’s stay abroad could be extended based on his medical reports.
The court directed the government to remove Nawaz’s name from the Exit Control List (ECL) without imposing any conditions. His brother, PML-N President Shehbaz Sharif, has also been allowed to accompany him.
The two-member bench, comprising Justice Najafi and Justice Sardar Ahmad Naeem, issued the verdict on a petition filed by Shehbaz challenging the government’s condition of furnishing an indemnity bond of around Rs7 billion to remove Nawaz’s name from the ECL.
During the hearing, Justice Najafi remarked that it was unfair for the government to place conditions after the Islamabad High Court (IHC) had already granted bail to the former premier.
After hearing the arguments from both sides, the LHC presented its own draft for the undertaking and handed it over to legal teams of the government and the petitioner for review.
While the draft was accepted by PML-N, it was rejected by the government’s lawyers.
In the court-approved undertaking, Nawaz assured that he would return to Pakistan “to face the process of law and justice within four weeks” or as soon as he was declared healthy and fit to travel back to country by his doctors. The initial handwritten undertaking did not mention the period of hour weeks.
Shehbaz, in his undertaking, stated that if at any stage the federal government had credible information that Nawaz was living abroad despite being fit, a representative from the Pakistani High Commission would have the right to meet with his physician to verify or confirm about his health.
“I, Muhammad Shehbaz Sharif, do hereby undertake to ensure the return of my brother Mian Nawaz Sharif, within four weeks or as and when certified by doctors that he has regained his health and is fit to return back to Pakistan,” it read.
“I further undertake to provide/send the periodical medical reports of the doctor duly notarised by the embassy to the registrar of this court.”
As the proceedings commenced, Justice Najafi raised seven questions: “could a convicted man's name be removed from ECL, could the condition raised by the government be separated from the memorandum of ECL, whether the condition imposed by government was present in the ECL Ordinance, was the government's order based on humanitarian grounds, could the government's condition be applied after obtaining bail, could both sides change their positions and lastly will the petitioner be ready to show his bona fide in the court”.
Additional Attorney General (AAG) Ishtiaq A Khan contended that before going into depth of these questions, he wanted to point out that if the former premier did not wish to furnish the indemnity bond to the government, he could submit it to the court.
The petitioner's counsel, Advocate Amjad Pervez, opposed the government’s stance, arguing that only the court could impose such a government.
The judge told him to consult with his petitioner about the government's offer and adjourned the proceedings for 15 minutes.
When the bench reassembled, the petitioner's counsel highlighted that Nawaz had returned to Pakistan along with his daughter leaving his dying wife behind in the UK.
He argued that the IHC had also observed that the verdict handed down by an accountability court in the Avenfield reference was not sustainable. He further contended that government could not touch the ECL matter as the appeal was sub-judice. “Neither the IHC, nor the LHC has mentioned anywhere that Nawaz Sharif could not go abroad,” he added.
On the judge’s query, Shehbaz assured the court that he would bring his brother back to the country as soon as he was fit to return.
The AAG contended that the IHC had to hear the appeal in the Al-Azizia reference on November 25 and Nawaz needed to be present there.
Justice Najafi inquired as to whether or not there was any provision in law under the government could impose a condition for removing a convicted person’s name from the ECL. The government counsel responded that there was no prohibition in the law.
Lawyer Ashtar Osaf, who was also representing Shehbaz, argued that anything which the law was silent on did not mean that it was permissible.
As the bench reassembled after another short break, Osaf read the undertakings of both the brothers. The AAG objected that bail period was not mentioned in undertakings.
He argued that it was tantamount to violating the IHC's verdict if the undertakings were accepted. The AAG reiterated that indemnity bond meant the fine which the trial court had imposed on Nawaz.
Justice Naeem inquired as to what the status of the undertakings would be if the bail application was accepted.
Justice Najafi remarked that the court was not expecting a specific time frame from the petitioner in connection with his return as Nawaz would act upon the recommendations of doctors.
A draft prepared by the federal government was submitted before court wherein it was proposed that Shehbaz would pay the entire fine if Nawaz did not return. The petitioner's counsel objected to the proposal.
On justice Naeem query, the AAG Khan quoted the example of PML-N leader Ishaq Dar, who did not return to the country.
Advocate Amjad argued that the court was not hearing Dar’s matter.
Justice Najafi observed that conditions imposed in the government's draft seemed over and above from the IHC's decision.
The bench issued notices to federal government and NAB to respond by the third week of January to decide the fate of the indemnity bond.
The court formulated the following law points: “Whether a convict can could be excluded from or included in the ECL under the 2010 Rules. Whether the condition attached to the impugned memorandum can be separated or is a part and parcel of it, whether any conditions be attached unilaterally by the federal government in the impugned memorandum on the basis of Exit from Pakistan (Control) Ordinance 1981 and the Rules made there-under, whether the impugned order can be passed for a critically ill-convict only on humanitarian grounds, Whether the conditions imposed are permissible even after the passing of the orders of bail and the suspension of a sentence? If yes, will it strengthen the court's order in any manner?”
“Mian Mohammad Nawaz Sharif is granted one-time permission to travel abroad as interim arrangement for four weeks and will return when certified by doctors that he has regained his health and is fit to return back to Pakistan,” the order read.
PML-N hails decision
After the court’s decision, Shehbaz told the media that the prayers of his mother, the nation and supporters had been granted.
“I am thankful to Allah that court has allowed Nawaz Sharif to travel abroad for medical treatment,” he said, adding that the court had nullified the government’s “Unjust condition of the indemnity bond”.
Reacting to the court’s decision, Attorney General for Pakistan (AGP) Anwar Mansoor Khan said it was an “interim” order purely based on “humanitarian grounds”.
Addressing a news conference in Islamabad flanked by prime minister’s aide on information Firdous Ashiq Awan, the AGP said the court had not rejected the government’s stance of demanding an indemnity bind from the Sharif family.
“I want to make this clear that the LHC did not reject the government’s stance of presenting surety bonds,” he said, adding that the matter would further be decided by the courts in January 2020.
The government, he said, would decide on appealing the decision after it received a written order, which would also be taken up by the federal cabinet.
Khan said that the federal government never opposed Nawaz traveling abroad for medical treatment but wanted an assurance because of his track record of not fulfilling the commitments made in the past.
Asked when Nawaz could fly out of the country, the AGP said: “The decision [to strike his name off the ECL] will be taken by interior ministry as soon as it receives the court order in writing.”
Firdous said Nawaz’s wellbeing was a humanitarian issue, which should not be politicised.
Prime Minister Imran Khan, she added, had even issued directives to government spokespersons that they should not give any political statements on the matter.
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